How the Supreme Court could surprise everybody on gay marriage and please nobody

Flora Castaneda (L) and
Tanilei Tesorio celebrate with a kiss after the Hawaii State
Senate approved a bill allowing same-sex marriage to be legal in
the state of Hawaii, in Honolulu November 12, 2013.REUTERS/Hugh Gentry

Many constitutional scholars predict the high court
will find gay-marriage bans unconstitutional and effectively
legalize gay marriage throughout the US. Gay marriage opponents, on the other hand,
hope the justices will keep those bans in place.

There is a third option that
would leave both sides unhappy, though.

"The court could hold that it is unconstitutional to deny LGBT
couples all the rights and privileges of marriage without
requiring states to allow them to marry," UCLA law professor Adam
Winkler told me.

A ruling like that would likely compel states to pass laws
allowing "civil unions" for gays — as
Vermont did in 2000, when it granted gay couples the benefits
of marriage without calling their union marriage. That would
disappoint many gay-marriage advocates, many of whom regard civil
unions
as separate and unequal to marriage. And it could upset some
gay-marriage opponents because it would give the privileges of
marriage to gay couples.

The case before the court centers on the constitutionality of
same-sex marriage bans in Kentucky, Michigan, Ohio, and
Tennessee, and it will consider these two questions:

1) Does the Fourteenth Amendment require a state to license a
marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a
marriage between two people of the same sex when their marriage
was lawfully licensed and performed out of state?

Anthony Kennedy the Red
Mass at the Cathedral of Saint Matthew the Apostle in
Washington.Reuters/Jason
Reed

One
other surprise ruling from the court could be one in
which it finds states must recognize gay marriages granted in
other states but don't have to grant their own gay
marriages.

Kennedy, who favors states' rights, might opt for either of
these surprise rulings because he would hesitate to force states
to grant same-sex marriages.

While Kennedy has consistently ruled for gay rights, he has
expressed hesitation about fully granting gay marriage. During
the gay marriage arguments in April, Kennedy commented that the
definition of marriage has "been
with us for millennia" and questioned whether the high court
should upend that.